Supreme Court agrees to hear appeal over whether HS2 tunnelling works benefitted from deemed planning permission

The court said the issue in the case was:

“Do the specified non-scheduled works on Phase One of High Speed 2 (the Bromford Tunnel Extension and Bromford Tunnel Extension Portal) benefit from deemed planning permission because they are “covered” by an Environmental Statement for the purposes of s20(2)(c) High Speed Rail (London-West Midlands) Act 2017?”

The case concerns revisions made in 2020 by HS2 Limited, which is building the railway, to scheduled works for the construction of the line between London and Birmingham, which had been authorised by the High Speed Rail (London-West Midlands) Act 2017 (the “2017 Act”).

The works in question were the 2.9km extension of the Bromford Tunnel near Birmingham, with the consequential relocation of the tunnel’s eastern portal (together, the “Proposed Works”).

In February 2021, HS2 Limited carried out an environmental impact assessment screening report for the Proposed Works (in relation to a proposed application for a separate Transport and Works Act Order).

The screening report acknowledged the Proposed Works would have environmental effects, but determined there would not be “any new or different likely adverse significant environmental effects” beyond those already assessed in the Environmental Statement carried out as part of the passage of the 2017 Act through Parliament.

The screening report therefore concluded an additional EIA was not required for the Proposed Works.

However, the Secretary of State for Transport disagreed with this conclusion in a response issued on 31 March 2021 (the “screening response”). The response determined an EIA was required because the Proposed Works would likely have significant effects on the environment (even if these were no greater than those previously assessed), such that the works fell within the applicable EIA Directive.

In September 2021, HS2 Limited made an application to North Warwickshire Borough Council for approval under schedule 17 of the 2017 Act for building works related to the Proposed Works.

The next month, North Warwickshire refused the application on the basis that the Proposed Works were not properly authorised under the 2017 Act.

HS2 Limited subsequently appealed under sched. 17 to the Secretaries of State for Transport and Housing, which appointed an inspector to hear the appeal.

The inspector determined in a decision dated 31 March 2023 that the Proposed Works were not authorised.

In May 2024, the Secretaries of State issued a decision letter disagreeing with the inspector’s decision, and granting approval to HS2 Limited for the building works under schedule 17, without requirement for an EIA.

North Warwickshire challenged the decision by way of a judicial review claim, arguing that the Proposed Works were not authorised by the 2017 Act and did not benefit from a statutory grant of deemed planning permission.

The Supreme Court said the council’s reasoning on the latter ground centred on alleged non-compliance with the requirement in s20(2)(c) of the 2017 Act for developments falling under that section to be “covered by an environmental assessment in connection with the High Speed Rail (London – West Midlands) Bill”.

The High Court dismissed the council’s claim and the Court of Appeal granted permission to appeal.

The Court of Appeal held that the Proposed Works were authorised under the 2017 Act, but allowed the council’s claim that there had been no deemed grant of planning permission.

The Secretaries of State and HS2 Limited lodged applications for permission to appeal to the Supreme Court on this second ground.

In the meantime, the Proposed Works have gone into construction and the council has not sought enforcement action.

A Supreme Court panel comprising Lord Reed, Lord Hamblen and Lady Simler has now granted permission to appeal.